Enemy Combatant

by Ed Gaffney

  We didn’t have a lot of time, so I tried to redirect the conversation. There was no way he was going to convince me of anything in the few minutes we had before the trial started. “Can you tell me something that might help me understand how this happened? Do you know anything about the evidence—”

  “I was tortured, man,” he said, his voice thick with emotion. “That’s what I know about. When they call you an enemy combatant, it doesn’t matter if they’re right or if they’re wrong. They do whatever they want. They drowned me, again and again. Cuffed my hands behind my back, and they pushed my head into a filled bathtub, and they held it there. One time I breathed so much water that I passed out. They woke me up by pushing on my stomach to get the water out of my lungs. Then they just stood around me and laughed while I was lying there, coughing and choking and crying and throwing up. I got so scared that every time they took me from my cell I pissed myself.” By this point in the story, tears were running down his cheeks. “And I confessed to everything to make them stop. Everything, man. Anything they wanted, I agreed to it, because I couldn’t take it. But they kept drowning me. And I didn’t do nothing wrong. I didn’t do nothing wrong.”

  I am categorically against torture. But in terms of trial strategy, what Juan Gomez said that morning was virtually useless to me. As cold as it sounds, pleas of innocence are not particularly helpful to criminal defense attorneys.

  So ten minutes later, as I entered the courtroom, I felt no better equipped than the day before, with the exception of the motions I had prepared with Cliff’s help the previous evening, and the briefcase in which I carried them. I took my seat at the defense table to my client’s right. Both of us had calmed down somewhat since our meeting—his eyes were dry, and I was not nearly as jumpy.

  One bit of good news was that my motions needed to be presented to the court before the jury came into the courtroom. I wasn’t sure how Judge Klay was going to react to my requests, and I really didn’t want the jury’s already unfavorable opinion of me to be further damaged by things she might say to me.

  As was the case yesterday, the rest of the room was packed with spectators, the press, the governor and his wife, and those survivors of the Denver attack who were not going to testify. It was all too easy to recognize them—many were scarred from the burns they’d suffered. And according to what Cliff reported later that day, the Judicial Broadcasting System television camera was working just fine. He was watching from the moment the judge entered, and Sarge announced that court was in session. I rose, offered the originals of my motions to Clerk Estrada, and gave copies to A.D.A. Varick.

  The clerk made some notations, and then handed the motions to Judge Klay, who made a bit of a show as she flipped through them, one at a time, harumphing occasionally, and once, outright laughing.

  Finally, she looked up, and said, “All right, Mr. Carpenter, I have had a chance to take a look at your filings this morning. I’ll hear you, beginning with your Motion to Continue.”

  In criminal trial practice, these kinds of motions were commonplace. Typically, judges allowed the attorneys to make brief, boring arguments, after which the judges made the rulings they intended to make in the first place. I rose, buttoned my suit jacket, and said, “Your Honor, as you well know, I was just appointed to this case yesterday. Given the magnitude and the severity of the charges—”

  The woman didn’t even let me finish my second sentence. “The magnitude and the severity of the charges have not changed since yesterday, Mr. Carpenter. The motion is denied. This trial is not about you, sir. It is about your client. He was the one who chose to dismiss his prior attorney. He cannot now claim that his new attorney is not prepared.”

  “But Mr. Gomez isn’t complaining—”

  “The motion is denied, sir. Please proceed to your next motion.” The judge lifted up a document and read the title aloud: “Motion for Mistrial, or in the Alternative, for a New Jury.” She lowered the document. “On what grounds do you think the defendant is entitled to another jury, Mr. Carpenter?”

  It took me a minute to shift gears so quickly. I expected Judge Klay to be creepy and unpleasant, but I really had not expected the vehemence and speed with which she blew off that first motion.

  But I wasn’t about to let that happen on the issue of the jury’s race. Judge Klay had been playing dirty for too long. So I said firmly, “Not one of these people—” as I dramatically turned and pointed to the jury box to make my point. But, of course, the jury hadn’t been called into the courtroom yet. Someone behind me snickered. Oops. Caffeine: One. Me: Zero.

  I lowered my finger somewhat anticlimactically, and turned back to the judge. “Not one of the jury members is Hispanic. The record will reflect that the defendant, Juan Gomez, is of Hispanic descent. His surname, his skin color, his family history, even the accent with which he speaks English, make this obvious.

  “Yesterday, when the jury was impaneled, from my vantage point, there were three, possibly four, persons of Hispanic descent in the entire eighty-five-person jury pool. Since none of those individuals ended up on the final jury—”

  Once again, Judge Klay interrupted. It didn’t look like she was even going to bother involving A.D.A. Varick in the conversation this morning. She was going to oppose my motions all by herself. “Do you have any evidence—other than your personal assessment, which, as I remember, was made from the courtroom gallery—of the racial composition of the jury pool?”

  Part of being a defense lawyer is being willing to ask for things that you know you aren’t going to get. Decent judges simply deny those requests. But judges like Rhonda Klay make you pay for asking.

  “No, Your Honor. The jury had already been selected by the time I was appointed to the case, so all I can offer the court are my personal observations—”

  “What is your racial background, Mr. Carpenter?”

  “I’m Anglo. Anglo American.”

  “I see. And are you also an expert on identifying, by sight only, Hispanic Americans?”

  “Well, I’ve lived in the Southwest for my entire life—”

  “But you have no formal training or expertise in determining, by visual inspection alone, whether any particular person happens to be of Hispanic ancestry?”

  She had me. But she was going to swat me around for a while before she finished me off.

  “No, Your Honor.”

  “I see. So your motion for a mistrial, or for a new jury, or whatever this is, is based entirely on your informal, visual, non-expert assessment of the racial composition of the jury pool?”

  Anyone familiar with criminal procedure knew the question was an invitation to suicide. I decided that as long as she was going to make this hard for me, I’d see if I could return the favor. “Actually, Your Honor, I was counting on the court to make findings of fact to support the motion, as it was in the best position to recognize the racial imbalance of the jury pool.”

  Judge Klay blinked. She probably had never faced a lawyer crazy enough to ask her, point-blank, to publicly acknowledge the kind of impropriety that she had been orchestrating for years.

  A nasty smile settled itself across her face. “You would like me to make findings of fact. Very well,” she said, sharply. “For the record, I find the following: One. The court assumes, and without evidence to the contrary, finds, that the jury pool was chosen randomly for this case, without any regard for its racial composition. Two. The court finds that the jury pool’s racial composition was not imbalanced, and to the extent that the racial composition of the jury pool did not mirror exactly the racial composition of the community, the difference resulted solely from the random selection process.

  “Accordingly, the defendant’s motion for a new jury is denied, and the motion for a mistrial is also denied.” She slapped the motion down and grabbed another one. “Next. Motion for Prosecutor to Refrain from Referring to the Defendant as an ‘Enemy Combatant.’” She looked up at me. “Why in the world shouldn’t the prosecutor be al
lowed to refer to the defendant in the same terms that the federal government does?”

  She was angry. Normally, I didn’t like getting judges mad at me. But by that time on that particular morning, I was actually enjoying it. Maybe the caffeine had temporarily eroded my self-preservation instincts.

  “That’s just the point, Your Honor. The crimes alleged in this case are essentially acts of terrorism—”

  “Mr. Carpenter.” Her voice was metallic. “This is a state court. The crimes alleged are murder, conspiracy, assault with intent to commit murder, and several others, as you know. The indictments say nothing about terrorism.”

  “Technically that’s right, Your Honor. But if this trial is truly going to be a test of whether the defendant is guilty or innocent of these crimes, it doesn’t seem fair for the jury to be repeatedly given the message by the prosecutor that the U.S. government has already decided that he is guilty.”

  “But that, of course, is not what the designation ‘enemy combatant’ means, is it, sir? ‘Enemy combatant’ is merely a procedural designation attached to certain individuals in order to indicate to authorities the procedures to follow while such individuals are in custody. Mr. Gomez is now a criminal defendant. Would you also like me to refrain from calling him a ‘defendant,’ Mr. Carpenter?”

  She was really worked up now. Her black eyes were shining with a dark intensity, and her voice, although still under control, was strained. As much as I hate to admit it, I realized at that moment that my ability to push her buttons might actually work to my advantage. I don’t know if I would have done it with a less despicable judge, but for better or worse, I chose a button, and I pushed.

  “As a matter of fact I would, Your Honor. The prejudice inherent—”

  But Judge Klay wasn’t about to listen to me spout my personal beliefs about how the justice system is tilted toward conviction. She tried to cut me off before I could really stoke her fire. “I’m sorry, Mr. Carpenter. The term is what it is. The jury has been instructed already that the defendant is presumed to be innocent until proven guilty, and they will be so instructed several more times before they decide this case. The motion is denied. There is no prejudice to Mr. Gomez if the prosecutor refers to him as an enemy combatant, or as a defendant. Whether you like it or not, he is both.”

  I waited for a moment, to lull her into believing that I had given up. And then I lit what I knew to be a very short fuse.

  “With all due respect, Your Honor, there is precedent for my motion. There have been cases where the court has precluded the prosecutor from using the term ‘victim’ to describe the complaining witness, where to do so would be to essentially validate and/or endorse the prosecution’s version of the facts—”

  Judge Klay jumped at the bait. She smacked her hand down on the bench and shouted, “Are you for one minute suggesting that the hundred and thirteen people that died in Denver last May were not victims? You should be very careful, Mr. Carpenter, about how you defend your client. I will not tolerate disrespect of any kind in my court, especially toward the hundreds and hundreds of victims of that awful attack.”

  No matter how much I disliked Judge Klay, and no matter how much I disliked losing, there was absolutely no way in the world I was going to exhibit any disrespect for the victims of the Denver Tunnel Bombing. For weeks after the catastrophe, my heart broke every time I thought of their suffering. A month after the explosion, my sister-in-law’s fourth-grade class held a bake sale to raise money to help buy a wheelchair for a ten-year-old who had suffered nerve damage in the disaster. I bought a cupcake for five hundred dollars.

  My argument that morning had merely been meant to keep the prosecutor from sending an unfair message to the jury.

  But Judge Klay had leapt to the wrong conclusion, and the reporters behind me were stirring at her outburst. I decided to play it cool. “I meant no disrespect whatsoever, Your Honor,” I said, “and I will, of course, take the court’s warning to heart.” Then I snapped back to business. “Please note my objection for the record to the court’s denial of the first three of my motions.”

  The judge glared at me, but there was nothing more for her to say. I had lost, and I had accepted it. She snatched up the last of my motions. She held it in her hand, shaking it slightly, while looking me dead in the eye with a cold, black stare. I had always thought the woman looked like a lizard, but in that moment, you would have sworn that on a distant, twisted, dark, and diseased branch of her family tree there was coiled a snake. “And in this final motion, Mr. Carpenter, you seem to be asking for a hearing to support your motion to recuse me from this trial.”

  The gallery began to buzz. There was no denying that asking a judge for a hearing to support a motion to throw herself off a case—well, was a little out of the ordinary. The undercurrent of menace in the judge’s tone added a layer of tension to the already highly charged atmosphere of the courtroom.

  But Cliff had found something important. It was slimy, though, and ugly, and needed to be dragged out into the sunlight.

  “Yes, Judge. As my motion indicates, I believe there are real concerns that Your Honor might have a conflict of interests—”

  She interrupted again. “You truly believe I can’t judge this case objectively?”

  “Well, I think there is certainly enough information contained in the motion to warrant an evidentiary hearing in order to explore—”

  “I disagree. I find that I am perfectly able to conduct myself and this trial in good faith, objectively, impartially, and in accordance with all applicable rules. The fact that I am a member of the board of directors of a corporation which has nothing to do with this trial is irrelevant. The motion is denied.”

  I couldn’t just let it go at that.

  “With all due respect, Your Honor, it seems that the most prudent course of action would be to have a hearing, so that the court could rest its ruling on an evidentiary foundation—”

  “And I disagree,” Judge Klay spat back. “The motion is denied, Mr. Carpenter, without a hearing. Because there is no need for a hearing. My findings are based on my own knowledge of myself, of this case, and of the situation to which you refer in your motion. There is no connection whatsoever between any aspect of my personal life and this trial.” The judge looked over to Sarge, and said, “Mr. Gilvery, we will take a ten-minute recess. Then please have the jury brought in so we may begin testimony. Thank you.”

  And with that, she slithered off the bench.

  I hurriedly scribbled something on a sheet of paper. I folded it with the copies of my motions, and stuck them all into my breast pocket.

  And then I bolted out of the courtroom.

  SIX

  THE PHOENIX Superior Courthouse is a seven-story rectangular building in the center of the city. The first three floors hold the Superior Court’s criminal and civil clerks’ offices and several courtrooms and judges’ offices. The cafeteria and law library take up the fourth floor. A small jail and several administrative offices are located on the fifth and sixth floors, and on the top floor, appropriately, is the highest court in the state—the Supreme Court of Arizona.

  The main staircase and two elevators run through the center lobby of each floor, and auxiliary staircases are located at each end, alongside the building’s men’s and women’s rooms.

  When I got out of the courtroom, I turned right, toward the nearest end of the building. Three members of the press followed me down the hallway, asking questions, mostly about my reaction to the judge stomping all over my motions. One was still interested in whether I thought my client would be better off without me.

  I tried to hurry, for two reasons. First, I didn’t know how much time I actually had, and second, I wanted to make the news guys believe that I had to go to the bathroom.

  Actually, thanks to all the coffee, I really did have to go to the bathroom. But that was going to have to wait.

  Anyway, by the time I reached the end of the hallway, the reporters were still with
me, still asking questions. When I reached the men’s room door I turned to face them, and said, “I’m sorry. I really can’t talk to you now. I’ve got to, you know, take care of some business before the recess is over.”

  One of the trio looked at me a little funny, but in the end, at least for a little while, my ploy worked. They started back toward the courtroom.

  And as they were walking away from me, I turned toward the bathroom door. But instead of opening that one, I opened the door next to it. And then I started tearing my way up six flights of stairs. Because if Judge Klay wasn’t going to take herself off the case, I was going to ask the Supreme Court of Arizona to do it.

  To be completely honest, “tearing my way” was not exactly how I ascended the staircase. It would be more precise to say that I was moving as quickly as I could, considering that I had to walk up the steps while keeping my right shoulder pressed along the outside wall of the stairwell, and my eyes averted from anything to my left.

  Unfortunately, the courthouse staircases wind around an open air shaft which extends the entire height of the building. That means that as you walk up the stairs, you can look over your left shoulder, all the way down to the bottom floor.

  The problem wasn’t that this is dangerous—bars have been installed to prevent prisoners from trying to escape by throwing themselves over the railing and down the shaft to freedom.

  The problem was that I was terrified of heights. Anytime I encountered a view which indicated that I was more than a few feet above the ground I got severely dizzy. In technical terms, I suffered from vertigo.

  So by the time I reached the seventh floor, I was breathing hard and perspiring freely—not just from the pace I kept on the stairs, but from the effort it took to convince myself, as I was mounting those steps, that I wasn’t really within three or four feet of a sixty-foot plummet to the basement. I put my hands on my knees and tried to compose myself before I walked down the hallway to the Clerk’s Office of the Supreme Court. It wasn’t going to do anyone any good for me to walk in there, vomit, and then pass out.